Judge Tallman writes for the Ninth and creates a new Circuit rule, recognizing a privacy right in a closed container despite a suspicious jail call and reversing the denial of a Fourth Amendment motion. United States v. Monghur,__ F.3d __, No. 08-10351, 2009 WL 2434396 (9th Cir. Aug. 11, 2009), decision available here.
Something smell fishy? That would be Herring.
Players: Another admirable win by D. Nev. AFPD Jason Carr. Decision by Judge Tallman, joined by Judges Hug and Hawkins.
Facts: Monghur, a felon, was in custody facing charges of attempted murder and battery. Id. at *1. On the day he was arrested he made three calls to his pal Bousley, wherein they discussed whether Monghur had been arrested with “the thing.” Id. Monghur asked Bousley to visit him in jail and pick up a key to an apartment, and told Bousley that he had put “the thing” in the closet in his room, “in the green.” Id. FBI agents searched the apartment (without a warrant) and recovered a handgun in a green opaque plastic container in the closet. Id. at *2. When charged with a § 922(g)(1) count Monghur challenged the search.
The magistrate and district court rejected the challenge, finding that Monghur’s taped jail calls extinguished any right of privacy that he might have had in the container. Id. at *2. Monghur appealed after a conditional plea (permitted by the USAO for the District of Nevada, still a novelty for the N.D. Cal. USAO.)
Issue(s): “The only question raised by this appeal is whether Monghur relinquished, abandoned, or otherwise waived [his expectation of privacy in the closed container] by disclosing the handgun’s existence and location in jail telephone conversations that he knew were monitored by law enforcement.” Id. at *2.
Held: “Nothing about his jailhouse conversations with Bousley, which law enforcement later overheard, operates as a ‘direct and explicit’ waiver of an expectation of privacy in a container hidden elsewhere . . . . Monghur’s efforts to conceal the subject matter based on what he said on the phone demonstrate both an objective and subjective intention to preserve privacy – not to relinquish it. We therefore reject the Government’s position that Monghur waived his expectation of privacy in the closed container through his statements on the telephone.” Id. at *4.
Of Note: The defense won this battle, but faces a worrisome war. In a long dicta diversion, Judge Tallman waxes fondly on the Supreme Court’s recent 5-4 decision in Herring v. United States, 129 S. Ct. 695 (2009). Id. at *5. Herring, you’ll recall, had Chief Judge Roberts revising the suppression remedy for Fourth Amendment violations, and curtailing the remedy to deter deliberate, reckless, or grossly negligent conduct, or recurring or systemic negligence.
Judge Tallman sends Monghur back to the district court for a decision on suppression, with a big helping of Herring on top. Id. The Ninth’s fishy advice bears close watching.
How to Use: Herring aside, the good new Ninth rule is that an (oblique) reference in a jail call does not surrender all privacy rights for things referenced in the call. The decision starts with very good language on privacy rights retained for containers in homes. Id. at *2. It also distinguishes out-of-circuit authority that views statements about the contents of a container as privacy waivers. Id. at *3-*4.
There’s much to commend in the opinion – a shame that it didn’t stop at its core holding, and instead continued on with the heavy-handed Herring hints on the suppression remedy.
For Further Reading: The Herring decision is available here. Academics debated how dangerous Herring would really be soon after the case was decided. See blog here. Decisions like Monghur support the “sky is falling” folks. If Herring fits Monghur’s facts, then Herring effectively created a “good faith” exception for the police outside of the warrant context (something the Supreme Court decidedly did not do).
Friends of the Fourth need to keep a close eye on Herring’s infiltration into the Ninth: it is a principle that could all too easily expand beyond the narrow limits of the holding itself.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org